MGT 3010 Law
Sources of Law in Canada
Legal rules are derived from three sources in Canada:
(a) The Constitution including the Canadian Charter of Rights and
Freedoms:
(b) Federal and provincial statutes (legislation).
(c) The Common Law – that is, decisions by courts in matters not
governed by legislation.
(d) Canadian law also embraces Equity. While courts of equity
amalgamated with common law courts in 1873-75, principles of
equity still differ from those of the common law.
The Constitution
Canada’s Constitution established by the British Parliament in 1867 (now
enshrined in the Constitution Act 1867) provides for a federal system with
power shared by the federal Parliament and provincial legislatures. Banking,
airlines, railways, other inter-provincial transport, criminal law, customs and
revenue, the military, (most) telecommunications, aboriginal matters and
foreign affairs are federal powers. Education, health, local government,
regulation of business beyond those specifically within the federal domain
are provincial matters. Constitutional protection of the French language
and the Roman Catholic religion reflects the needs and influence of
Quebec and New Brunswick at the time of confederation. English and
French are the official languages of the latter.
Disputes sometimes arise over the extent of federal and provincial powers.
There is inevitably overlap in some matters.
See Reference re Firearms Act [200] 1 S.C.R. 783. Gun Registry. Does it
infringe on property rights and civil rights or is it primarily about
criminal law?
See R. v. Westendorp [1983] 1 S.C.R.43. Municipalities controlling
pornography and prosecution. May clash with federal jurisdiction over
criminal law.
For example, if a municipality in Province of Manitoba uses the power
conferred on it by the provincial legislature to regulate business and
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other activities within its boundaries, it may stray into the federal
jurisdiction of criminal law. A local by-law prohibiting and penalizing
the use of public streets for purposes of prostitution might appear to be
within municipal and provincial jurisdiction, but might also fall within
the exclusive jurisdiction of the Federal Parliament, constitutionally
responsible for the Criminal Code.
See Maple Ridge District v. Meyer
Note the issues of shared jurisdiction.
Health and safety at work laws. There are provincial laws and the
Criminal Code.
See paramountcy. Law Society of B.C v. Mangat
The courts are the arbiters of jurisdictional disputes on constitutional matters
and can strike down legislation or by-laws that are ultra vires, that is,
beyond the constitutional power of the level of government that purported to
pass the law. In the foregoing example, if the Manitoba Court of Appeal held
the by-law to be illegal, all lower courts in Manitoba would be bound to ban
any similar by-laws in that Province. Such decision of the Manitoba Court of
Appeal would not bind even the lower courts in the other provinces. For
example, Alberta’s courts might rule such by-laws to be within the powers
of municipalities as conferred by the Province’s Municipal Government Act.
The Manitoba decision would have persuasive authority before the Alberta
courts but would not be binding. Ultimately, the Supreme Court of Canada
would be asked to rule on the conflicting decisions of the Alberta and
Manitoba courts and establish an interpretation of the Canadian Constitution
binding on the courts and lawmakers of all provinces in Canada.
The Canadian Charter of Rights and Freedoms (the Charter)
This is also part of the Canadian Constitution. If federal or provincial
legislation or government power exercised under such legislation offends
any of the rights or freedoms protected by the Charter, the courts may strike
down the offending legislative provision or find that it does not apply to the
circumstances of the case before it. The creation of the Charter demonstrates
the concern of Canadians that, if the definition of valid law depends merely
upon the directive of the “sovereign” (for example Parliament), such law
might offend “natural law” principles agreed by most Canadians as
necessary for the existence and development of democracy. For example a
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law banning speech that is critical of government policy might be seen by
most Canadians as undesirable, but without the Charter, it would remain the
law, unless repealed by Parliament.The effect of the Charter is that if
legislation offends the Charter it is not valid law at all.
For example, in R. v. Big M Drug Mart [1985] 1 S.C.R.295, the Supreme
Court of Canada found unconstitutional the provision of the federal Lord’s
Day Act which prohibited stores from opening on Sunday. This was held to
be in breach of freedom of religion provided for by the Charter. RJR
McDonald and Imperial Tobacco v. Canada (1995) 187 N.R. 1.
Restricted tobacco advertising violated freedom of expression.
The Supreme Court of Canada in Vriend v. Alberta [1998] 1 S.C.R. 493
held to be in breach of the Charter the Alberta Human Rights Act, which did
not provide protection for discrimination on grounds of sexual orientation.
The Court went as far as to write into the Alberta legislation the requirement
that it protect persons against discrimination on grounds of sexual
orientation. (See section 15 of the Charter, which does not specifically list
sexual orientation as a protected ground. The courts have found that it is a
ground “analogous” to those listed in section 15).
It should be noted that it is open to Parliament or the legislature in these and
other cases to use the “notwithstanding” (s. 33) clause of the Charter and
pass legislation overriding the judicial decisions on the constitutionality of
the statutory provisions. This was not done in any of the examples
mentioned and is rarely done by legislatures or Parliament. To do so would
involve political risks for the relevant government and typically they have
not done so. (See however Quebec in language matters).
The rights and freedoms entrenched in the Charter are fundamental but not
absolute. Freedom of speech, conscience, association, religion, mobility
within and outside the country are viewed as necessary for a free and
democratic society. So are freedom from arbitrary arrest and imprisonment,
the right to a fair trial and freedom from discrimination in access to benefits
of the law without discrimination on such grounds as race, age, sex,
disability and so on. Such rights and freedoms reflect a natural law
perspective of the law. If governments or legislatures pass laws that infringe
such fundamental values, the courts are liable to strike down such “laws” as
having no legal effect or legitimacy. However, it is open to lawmakers to
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establish under section 1 of the Charter that the legislative infringement of
the Charter is “justified in a free and democratic society”.
Accordingly, the law criminalizing the dissemination of racial or religious
hatred has been held justified in a free and democratic society even though it
restricts freedom of expression, a ground protected in the Charter. See R. v.
Keegstra [1990] 3 S.C.R. 697.
The political debate over same sex marriage arose out of rulings by courts in
two Canadian provinces that the lack of right of same sex couples to marry
was in breach of section 15(1) of the Charter of Rights and Freedoms which
entitles persons to receive the benefit of the law without discrimination on
grounds of sex and sexual orientation, unless such discrimination can be
shown to be justified in a free and democratic society. Of course some
Canadians consider that lack of access to the legal benefits of marriage by
same sex couples is not discriminatory or, if it is, it is justified in a free and
democratic society to preserve the traditional conception of marriage. As the
definition of marriage is a federal constitutional power, it is unlikely that any
province could invoke the “notwithstanding clause”.
Those who disagree with a particular Charter decision may be heard to
criticize the courts for usurping the power of democratically elected
members of Parliament of legislatures.
Judges in Canada are not elected. Nevertheless, there is much more to
democracy than elections every four years and voting by members of
legislatures. While elected representatives are responsible for holding
government to account, they most frequently support the initiatives of
government leaders. Power tends to be concentrated in the hands of a few
elected politicians and unelected bureaucrats as elected delegates consider
their own political careers. Those critical of unelected judges as
incompatible with democracy may also consider whether the immense power of
large corporations is compatible with democracy.
Also even free decisions of the majority of elected delegates can oppress
minorities, an outcome inconsistent with the dominant Canadian cultural
value of diversity in society and the protection of vulnerable groups and
individuals. Such values remain a strong element of Canadian laws and the
Constitution. Ultimately legislatures and Parliament can override the courts
if the have the support of public opinion and the issue is within their
legislative jurisdiction.
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The Courts
While the courts interpret the Constitution and federal and provincial
legislation, they also have an important function in making and applying law
that does not originate in legislation or the Constitution. This is “the
common law”. In this sense the common law is used to distinguish law
made by judges from that created in statutes passed by legislatures or
Parliament. Since 1873, the common law also includes the law of equity
which had been created and applied by the Court of Chancery in matters not
within the jurisdiction of the common law. As mentioned in class, equity
dealt with such matters as trusts and mortgages, which the common law
failed to deal with because of the lack of precedent in such matters. Also,
Equity courts could provide the remedy of “specific performance” of a
contract rather than just damages to which the common law was confined by
precedent. Equity courts recognized at times that justice might require an
order to require a party in breach of contract to perform the contract rather
than merely pay damages to the injured party. The systems of common law
and equity are now joined but if lawyers are seeking equity they must seek it
in accordance with the rules developed by the Court of Equity (Chancery).
The common law was also influenced historically by the civil law (for
example Roman Law), canon law (church law) in matters of marriage and
other family law, as well as estates and succession, the law merchant which
had regulated trade between nations.
Judicial precedent
In any jurisdiction in Canada a lower court is bound by a precedent
established by a higher court in the jurisdiction on the relevant point of law.
This is the doctrine of stare decisis. It cannot overturn or ignore the decision
of the higher court. However, the lower court is only bound by the ratio
decidendi of the precedent, that is, by the “reasons for the decision”. If a new
case presented to a court involved different facts from that of a preceding
case, the court might decide that such differences allowed it to distinguish
the new case from the precedent and come up with a different decision. To
use a simple example a court might be presented with a case of alleged
intentional homicide and find from the facts that the defendant did intend to
kill the deceased. The court might also have precedents where intentional
killing was held to be murder and punishable by life imprisonment. Suppose,
however, that the evidence indicated that in the new case, the defendant
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acted in self-defence, having shot a burglar who also had a gun. The element
of self-defence is a feature that distinguishes the new case from the
precedent and will allow the court to depart from the precedent. Clearly,
judges have some discretion in deciding what features of a new case are
relevant distinguishing features. This distinction could apply to a civil law
suit for battery or wrongful death.
Note that the importance of precedents lies not only in whether they are
legally binding. Lower courts in a jurisdiction or courts in another
jurisdiction may follow a precedent not because it is binding but because it is
persuasive. The case of Hedley Byrne (Yates Chapter 4) involving economic
loss arising from another’s negligent misstatement is an example of the
persuasive power of a House of Lords decision. The Court’s reasoning on
liability for negligent misstatement did not bind future courts, even in
England, because the reason for its decision to find against negligent
misstatement was the fact that the defendant had written a disclaimer when it
gave the negligent advice.
It is clear that a court’s power to decide which different or similar fact
situations of the case before it and the precedent(s) are relevant provides it
with a fair measure of discretion about whether to consider itself bound by
the precedent or whether to distinguish the two cases. Nevertheless, the
courts are aware of the importance of consistency and predictability in the
law, particularly in matters of business where insuring against risks is
important.
Legislation
Subject to constitutional challenge on jurisdiction or for breach of the
Charter, legislation is supreme law. A court cannot strike down or choose
not to apply legislation simply because it disagrees with the legislation or
because some other province has different legislation on the matter.
Courts have some discretion in how they interpret legislation but are bound
to interpret it in a liberal manner to achieve the purposes of the legislation as
the court perceives them. Accordingly, the Supreme Court in Ontario
Human Rights Cmmission et al. v. Simpson Sears (1985) 23 D.L.R.(4th)
619 (the O’Malley case) interpreted the word “discrimination” liberally as
embracing the effect of the employer’s action rather than narrowly to mean
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the intent of the action. This was consistent with the Court’s view that the
purpose of the legislation was to remedy the effects of discrimination not
merely to deter intentional discrimination. This involved a value judgment
but was within the scope of judicial discretion.
Subsidiary legislation
The realities of government bureaucracy are that much power to
administrative bodies to establish legal rules is delegated by legislatures and
Parliament to departmental ministers or to administrative bodies with
expertise in the matter at hand. Primary legislation usually confers on
Cabinet, a government minister or an administrative body, such as the
Workers’ Compensation Board or the Human Rights Commission the power
to pass regulations dealing with detailed matters. For example the Alberta
WCB is empowered by the Workers’ Compensation Act to designate any
class of persons as workers under the Act. The WCB cannot act beyond the
powers conferred and if it does the subsidiary legislation (regulation) may be
struck down as ultra vires the primary legislation. Local authority by-laws
are a form of subsidiary legislation. They are just as legally binding as
primary legislation but must be consistent with the power conferred by the
primary legislation.
The role of custom and ethics
While Canadian law is seen as having the foregoing sources, those sources
are themselves influenced by custom and the values of persons responsible
for creating and interpreting the constitution, legislation and judicial case
law. Such customs and values are slow to change but do change over time.
For example, public and legal attitudes to race, gender, disablement have
changed substantially in Canada in the last half-century and have influenced
each source of the law. In employment law for example, it is no longer
lawful for an employer to dismiss an employee who has a disability
rendering him incapable of performing the job as defined by the employer.
Within limits defined by the law, the value of including persons with
disabilities in the workforce and society as a whole has become a more
important value in law than traditional managerial right to define how work
should be performed and by whom it should be performed. Changes in
public attitudes to race, gender and so on have influenced employment law,
family law and the criminal law.
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Another example of change in social values is the attitude to corporations.
These are creations of the law and until as late as the mid-19th Century the
dominant culture was that incorporation was a privilege conferred by the
state for the benefit of the common good. There were legal limits placed on
the actions and power of corporations, or more accurately upon those acting
on behalf of the corporation. Today the corporation has most of the rights of
“personhood” including rights protected by the Charter. The dominant
culture is that corporations are bound to serve the interests of their
shareholders, with the interests of other stakeholders, including those of the
public, of secondary importance. Such values affect the law as applied to
corporations.
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